Sources of International Law

Sources of International Law

Since the earliest state system development, customary rules emerged among states as these actors worked through problems and established solutions as precedents. Treaties are agreements, usually written, that date from ancient times but have grown in importance as products of modern multilateral conferences, which are made possible by rapid travel and communication. Principles of law are used to fill in when customs or Treaties do not provide sufficient rules and are often drawn from the domestic experiences of states. Formally the decisions of judges rank at the bottom rung of the hierarchy of sources of law, but the growth of courts and tribunals can only highlight the importance of judicial decision-making. The writings of publicists have lost ground as a source of law, but their research and writing still have some influence as new problems in law are encountered. The scope of international law covers almost every subject that states deal with in their municipal or domestic context.

The Sources of International Law

Sellers M.N.S. (2006; The Sources of International Law. In: Republican Principles in International Law. Palgrave Macmillan, London) wrote: “Law must come from somewhere, and scholars and lawyers, to find law, and understand the law must know where to look for it, so from time to time writers and advocates have speculated about the sources of international law. The earliest modern advocate of the law of nations, Hugo Grotius, saw the ultimate source of law in humanity’s natural need for social order, discovered and constructed by human intelligence. Grotius observed that justice is approved, and injustice condemned, by good people everywhere. So he sought evidence of the law of nations in unbroken custom and the views of skilled and reflective authors throughout the ages. Just as municipal law arises from the mutual consent of individuals seeking the good of their community, so too, Grotius suggested, does international law arise from the implicit consent of states, seeking the good of the international community as a whole.”

Bibliography

  • Aust, Anthony (2007) Modern Treaty Law and Practice. New York: Cambridge University Press.
  • Byers, Michael (1999) Custom, Power, and the Power of Rules: International Relations and Customary Law. New York: Cambridge University Press.
  • Byers, Michael and Nolte, Georg (2003) United States Hegemony and the Foundations of International Law. New York: Cambridge University Press.
  • Davidson, Scott (ed.), The Law of Treaties. Burlington, VT: Ashgate.
  • Dekker, Ige F. and Post, Harry H. G. (ed.) (2003) On the Foundations and Sources of International Law. New York: Cambridge University Press.
  • Evans, Malcolm D. (ed.) (2006) International Law, 2nd edn. New York: Oxford University Press.
  • Kelsen, Hans (1966) Principles of International Law, 2nd edn. Revised and edited by Robert W. Tucker. New York: Holt, Rinehart, and Winston.
  • Jonathan Charney, “International Law-Making in a Community Context,” in 2 International Legal Theory 38 (1997).
  • H. Morgenthau and H. Thompson. Politics Among Nations. 6th edn. Alfred A. Knopf. New York, 1985 (first edn, 1948).
  • John Austin, The Province of Jurisprudence Determined. John Murray. London, 1832.
  • Hans Kelsen, Pure Theory of Law. C. Knight trans. University of California Press. Berkeley, California, 1967.
  • Jonathan Charney, “International Law-Making in a Community Context,” in 2 International Legal Theory 38 (1996).
  • Richard Falk “The World Order between Interstate Law and the Law of Humanity,” in 1 International Legal Theory 14 (1995).
  • Klabbers, Jan and Sellers, M. N. S. (2008) The Internationalization of Law and Legal Education . London: Springer.
  • Koskenniemi, Martti (ed.) (2000) Sources of International Law. Burlington, VT: Ashgate/ Dartmouth.
  • Treaty Handbook (2008) New York: United Nations Publications.

Conclusion

Notes

See Also

References and Further Reading

About the Author/s and Reviewer/s

Author: international

Mentioned in these Entries

About the Origins and Sources of International Law, Historical, Customary International Law, Education, Guides to Sources of Basic Legislation, Treaties.


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